December 22, 2020 ~ Appeals Board Meeting

2020-12-22 · Board of Appeals · 1:07:29 · watch on YouTube →

A Board of Appeals public hearing held over Zoom on 22 December 2020, chaired by Barbara Schneider. The board first corrected the minutes of its previous meeting, which had recorded the opposite of what it decided about whether bins are structures, and then discussed whether to write to the selectmen about the land use experience a new town manager should have. The main business was Alvin Dennison's request for a variance to place a mobile home at 184 Auburn Pownal Road, on a pad that had held one until 2007. Code enforcement officer Bob Forest (?) explained that the December 2019 ordinance allows only one dwelling per lot and that the route open to the applicant is to create a conforming back lot. The board disagreed with the applicant's reading of the three-year replacement provision in section 16.5 C, voted to deny the variance, and spent much of the hearing discussing alternatives, including a back lot, an addition to the house, and the limits of a disability variance.

No written minutes could be matched to this meeting. The transcript records that the speaker changed but never who was speaking, so any name attached to a statement below is inferred from context and is marked (?).

What was discussed

1. 0:01
   Opening and introductions

   Barbara Schneider opened the hearing and asked members and alternates to introduce themselves: Dean Clark, Paul, Terry Kirk, Heather Roy, Milt, and later Gary Wood, who said he had been on the board about 35 years. Bob Forest, the code enforcement officer, was also present.

2. 0:01
   Interested party and applicant join

   A participant identified only as Dan, of Auburn Pownal Road, introduced himself as an interested party rather than a representative of the applicant. The applicant was not initially visible and joined shortly afterwards by telephone.

3. 0:01
   Minutes of the previous meeting: two corrections

   Minutes circulated by Kathy Dion had not been reviewed by the chair until shortly before the meeting. Gary Wood had submitted one correction by email, and the chair identified a second: the minutes recorded the opposite of the board's vote, which had deemed the bins to be structures.

4. 5:19
   Correction of the minutes and roll call vote

   A motion was made to correct the minutes by removing the word "not" from the vote on structures and adding Gary Wood's amendment, which noted that the approval for the CEO to issue the junkyard permit was subject to the selectmen's approval. On Gary Wood's advice the chair took a roll call rather than a show of hands.

5. 5:19
   Move to a town manager form of government

   The chair noted the town had voted at the last election to move to a town manager and selectmen form of government and was doing a needs assessment for the position. She proposed drafting a letter to the selectmen arguing that a new manager should be well versed in current land use issues and ordinance drafting, given the growth pressure the town and planning board are seeing.

6. 10:41
   Gary Wood on what a manager should know

   Gary Wood (?) said he would put municipal and school finance first and would expect a manager to bring in outside counsel and experts on land use. He was uncomfortable with a manager taking a leadership role on policy questions such as what the town's ordinances should say, and suggested wording it as "to the extent possible" rather than a major criterion.

7. 10:41
   Paul on the demands of the job

   Paul, who said he had gone from being a planner to a town manager and had a full-time town planner at New Gloucester, said Durham has no equivalent and the new manager may also carry a substantial everyday administrative role. He supported the sentiment but agreed with the "to the extent possible" caveat, since the hire depends on the pool of candidates.

8. 15:53
   Staff support on ordinance interpretation

   The chair noted the town now has a part-time planner who is not in the office every day. She and Paul discussed the value to the code officer of having someone in the office to check an interpretation against, given how much interpretation part-time boards and the CEO have to do.

9. 15:53
   Order of proceedings for the appeal

   The board agreed to its usual order: the code enforcement officer gives an overview, the applicant explains the basis of the request, and the board then asks questions.

10. 15:53
    Code enforcement officer's overview

    Bob Forest (?) said Alvin Dennison had asked him about putting a mobile home on the property about a year earlier, when the ordinance allowed two dwellings per lot; his approach then was to allow it where the frontage and acreage would support a second conforming lot. The December 2019 amendment changed the language to one dwelling per lot, so he told the applicant this year that a piece would have to be broken off.

11. 15:53
    Applicant's statement

    Alvin Dennison (?) said his written appeal was largely self-explanatory. He had asked previously about a permit to move a mobile home onto a site on his property that had previously held one.

12. 21:01
    The applicant's reliance on section 16.5 C

    Dennison cited section 16.5, non-conforming structures, paragraph C, on reconstruction or replacement, reading the three-year restoration period as running from the enactment of the new ordinance. He also raised his circumstances: moving his mother and sister back onto an established site.

13. 21:01
    The one-dwelling-per-lot provision located

    Asked for the section, Bob Forest gave section 4.1 A2 on page nine of the amended ordinance, covering the rural residential and agricultural district. It permits only one single family detached dwelling or two family dwelling on a lot, and requires minimum street frontage at least equal to the minimum lot width.

14. 26:08
    When the request was made and which ordinance applies

    Gary Wood (?) asked when the applicant had formally requested permission this year; Bob Forest (?) said he came into the office and the CEO's letter is dated 29 October. Parts of the ordinance were revised at the November 2020 election, but the single-dwelling-per-lot provision came from the December 2019 amendment, which the board confirmed was the applicable text.

15. 26:08
    Why the applicant objects to creating a second lot

    Asked what caused him difficulty with the CEO's suggestion, Dennison (?) said it would require another road to the new lot and that the site was already established. Bob Forest (?) explained the new lot would have to be a back lot because the property does not have 600 feet of road frontage, and a back lot requires 300 feet of frontage on a 50-foot-wide right of way.

16. 31:46
    Lot size and frontage

    The parcel is 56 acres with about 390 feet of frontage on Auburn Pownal Road. Bob Forest (?) said there is room to put in a 50-foot-wide right of way and keep both lots conforming, with the new one as a back lot requiring 300 feet of frontage, 200 feet of depth and five acres.

17. 31:46
    Disagreement over what 16.5 C covers

    The chair said 16.5 C addresses a structure accidentally damaged or destroyed, not one removed, and that the ordinance does not let a nonconformance be recreated once it has been removed. Dennison (?) read the clause listing fire, flood, lightning, wind, structural failure or other accidental cause, and said his mother left the mobile home because of structural problems with the floors.

18. 31:46
    When the three-year clock starts

    The chair said the mobile home was removed in 2007. Dennison (?) argued that this should not matter because nothing prohibited it in 2007, so the three-year period should run from the December 2019 ordinance that first made it an issue.

19. 36:51
    Improvements already on the site

    Dennison (?) said the site is excavated and served by a water pipe from his house, a septic system and power poles. The board said it understood, and that it was trying to find a way to achieve what he wanted within the language of the ordinance.

20. 36:51
    Section 16.4.4 C and the one-year provision

    Discussing a hypothetical foundation left unfinished, Gary Wood (?) said 16.4.4 C gives a year to resume a non-conforming use after an ordinance is passed. The board and the applicant agreed the older ordinance had a similar requirement.

21. 41:54
    Audio problems

    Feedback and background noise interrupted the hearing and participants were asked to mute. A short stretch is taken up with sorting this out.

22. 41:54
    Paul's reading of 16.5 C

    Paul (?) said the application was well written but that the intent of 16.5 C is to cover a building damaged or destroyed after the enactment date of the ordinance, so it does not apply here. The chair added that the board is bound by the ordinance and has to be fair to everyone in that respect.

23. 47:06
    Creating a lot and later rejoining it

    The chair suggested the applicant could create a back lot in his own name, a family member's, or an entity he controls, and could rejoin it to the main lot later. She raised whether creating a lot in Durham requires a licensed surveyor; Bob Forest (?) said he has always requested a survey, and she said she could not find that requirement in the ordinance.

24. 47:06
    Limits of a disability variance

    The chair said she was convinced the applicant's mother would meet the state's definition of a person with a disability, but that the board can grant a disability variance to create access to a dwelling and not to create a separate dwelling. That would mean physically attaching the mobile home to the house, with the construction cost that implies.

25. 52:16
    The family circumstances

    Dennison (?) said his mother is 95 and that his sister would be buying the mobile home so she could care for her. He said there was no intention of renting or selling, and that his sister would not have a place of her own from next spring.

26. 52:16
    Heather Roy's question about frontage

    Heather Roy (?) asked whether a shaded area on the plan could count toward the 300 feet of frontage for a back lot. Bob Forest (?) said the house lot cannot be included, that the right of way would go on the right-hand side, and that a hammerhead would allow a 150-foot road, but the road must be 20 feet of gravel within a 50-foot right of way.

27. 57:23
    Scope of the board's role

    The chair said the board votes only to grant or deny the variance; creating a back lot is a matter between the applicant and the code enforcement officer, and the board does not weigh in on it.

28. 57:23
    An addition to the house as an alternative

    The board discussed adding onto the house instead, with a disability variance for access. Members questioned why an addition would be limited at all, since the house is a conforming structure on a conforming lot meeting its setbacks, and Bob Forest (?) confirmed an in-law apartment or extra bedroom would be a basic building permit.

29. 57:23
    Alternates identified and remaining members heard

    The chair noted Paul and Heather Roy are alternates who were not designated as voting members because there was a quorum, and that the voting members were Dean Clark, Gary Wood, Milt Simon (?), Terry Kirk and herself. Terry Kirk (?) said that with the ordinances as they are and without creating a back lot he could not see how it could go, and Milt Simon (?) agreed that removing the mobile home in 2007 left nothing for section C to apply to.

30. 1:02:46
    Motion to deny the variance

    A motion was made to deny the variance because the application fails to meet any of the requirements in the ordinance for obtaining one, and was seconded. The chair called for further discussion and then took a roll call, which was complicated by a member being unable to unmute and indicating agreement by raising his hand.

31. 1:02:46
    Written opinion and right of appeal

    The chair said the minutes would record the bare bones and that she would write a brief opinion as usual. She told the applicant he has the right to appeal, but that the alternatives discussed would likely be a more cost-effective route.

32. 1:02:46
    Adjournment

    A motion to adjourn was made and seconded, and a roll call was taken. The recording ends during the roll call.

What was decided

• 5:19
  Correct the minutes of the previous meeting by removing the word "not" from the vote on structures, so that they record the board as having deemed the bins to be structures, and by adding Gary Wood's emailed amendment noting that the approval for the CEO to issue the junkyard permit was subject to the selectmen's approval. Seconded by Terry Kirk; approved on a roll call in which Paul, Dean Clark, Milt Simon (?), Gary Wood and Terry Kirk all voted to approve.passed
• 15:53
  Barbara Schneider to draft a letter to the selectmen on the land use experience the board would like to see in a new town manager, and circulate it to members. No vote was taken, and the board expressly left open whether it would send the letter once members had seen a draft.tabled
• 1:02:46
  Motion to DENY Alvin Dennison's request for a variance at 184 Auburn Pownal Road, on the ground that the application fails to meet any of the requirements in the ordinance for obtaining a variance. The motion to deny was seconded and carried on a roll call, so the variance was refused; the chair went on to explain the applicant's right of appeal.passed
• 1:02:46
  Adjourn. Moved, seconded and taken by roll call, with audible yes votes from Dean Clark, Terry Kirk and Gary Wood before the recording ends.passed

An outcome reads "unclear" where the recording does not state it plainly. The recogniser drops short words, and "the motion does not carry" is one missing word from its opposite.

Worth knowing

• 0:01
  The minutes of the board's previous meeting recorded the opposite of what it had decided. The word "not" had to be struck so the record showed the board voting to deem the bins to be structures.
• 31:46
  The property is 56 acres but has only about 390 feet of road frontage, short of the 600 feet needed for two front lots. Any second lot would have to be a back lot with 300 feet of frontage, 200 feet of depth, five acres, and a 20-foot gravel road in a 50-foot right of way.
• 31:46
  The whole dispute turned on the mobile home having been removed in 2007, years before the ordinance existed. The applicant read the three-year replacement period as starting from the December 2019 ordinance; the board read section 16.5 C as covering only structures accidentally destroyed after enactment.
• 5:19
  The town had just voted to move to a town manager and selectmen form of government and was running a needs assessment for the post. The chair wanted the board to press for land use and ordinance experience as a hiring criterion.

Motion language found in the transcript

Located by pattern matching, with no model involved: "I move that", "I'll second", "all those in favour". This is an independent check on the summary above: 2 passages of motion language, against 4 decisions summarised.

Elsewhere

← 2020-11-17 Board of Appeals2022-07-19 Board of Appeals →All meetings